Same-sex marriage harms free speech, new Ontario judge wrote in 2012

People relax beside the Edwina Sandys sculpture "Pillars of Justice" outside the court house at 361 University Avenue in Toronto, Ontario in this October, 2012 photo. Newly-appointed judge Bradley Miller said the “new orthodoxy” about gay marriage in Canada means that those who object to it are treated as bigots and denied their rights as parents, workers, pamphleteers or religious believers.

A law professor named an Ontario judge this week wrote two years ago for a conservative, U.S.-based institute that the legalization of same-sex marriage in Canada has harmed religious freedom and free speech, and led to the "indoctrination" of children in public schools.

Bradley Miller, a constitutional specialist at Western University in London, Ont., said the "new orthodoxy" about gay marriage in Canada means that those who object to it are treated as bigots and denied their rights as parents, workers, pamphleteers or religious believers. He also said parents who do not want their children hearing discussions on the subject would have to pull them out of public schools.

Prof. Miller will become one of about 550 judges appointed by the Conservative government since it came to power in 2006, out of 840 full-time jurists on federally appointed courts, including superior and appeal courts of provinces. Justice Minister Peter MacKay announced his appointment on Monday, effective Jan. 16, at a time when Ottawa is under fire for cancelling parliamentary involvement in Supreme Court appointments.

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Public hearings are not held for new judges on other federally appointed courts. The appointments this week of Prof. Miller and Grant Huscroft, both conservative constitutional specialists from Western University, are raising questions in the legal community over the government's choices.

"The new curricula are permeated by positive references to same-sex marriage, not just in one discipline but in all. Faced with this strategy of diffusion, the only parental defense is to remove one's children from the public school system entirely," Prof. Miller wrote in Public Discourse, an online publication of the Witherspoon Institute, a U.S. research centre that says it seeks "to enhance the public understanding of the moral foundations of free societies."

He said that while the goal of promoting tolerance of all people is laudable, "the means chosen to achieve it is a gross violation of the family. It is nothing less than the deliberate indoctrination of children (over the objections of their parents) into a conception of marriage that is fundamentally hostile to what the parents understand to be in their children's best interests."

Prof. Miller did not respond to a request for comment on Tuesday. A spokeswoman for Mr. MacKay's office said the government is "committed to ensuring that the legal excellence and merit Canadians expect continues to be the priority consideration in the selection of judges."

Prof. Miller argued against same-sex marriage on behalf of an interfaith coalition in an Ontario case in 2003, and in the same-sex reference case before the Supreme Court of Canada in 2004. (Mr. MacKay also promoted another lawyer who represented a group opposing gay marriage in that case, Justice David Brown of the Ontario Superior Court of Justice, to the Ontario Court of Appeal this week.)

Legal scholars said in interviews that Prof. Miller's comments do not mean he is unfit for the bench, as long as he is willing to put aside his views and keep an open mind.

"It's perfectly normal for a Conservative government to appoint judges an NDP government wouldn't appoint," said Robert Leckey, a McGill University law professor. Pointing to Ottawa's decision not to have a public hearing for its new appointee to the Supreme Court last month, Montreal lawyer Suzanne Côté, he said that it is a good thing that there is transparency about Prof. Miller's views.

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Dennis Baker, a political scientist at the University of Guelph, said the impact of same-sex marriage on religious freedom "is a reasonable subject for a Canadian law professor to address." He called Prof. Miller a "thoughtful, rigorous and serious scholar."

University of Toronto political science professor emeritus Peter Russell, citing a century-old dictum of U.S. Supreme Court justice Benjamin Cardozo, said judges are obliged to put aside their prejudices and interpret the law in a way that works for all of society. But courts need a range of viewpoints, he said.

"The important thing is that there be a balance of outlook [in judicial appointments] that matches reasonably well the balance of argument and outlook in the country."

Bruce Ryder, a law professor at Osgoode Hall who cheered Mr. MacKay's appointments of academics, questioned the balance of the Conservative government's choices.

He called Prof. Miller's views "troubling, as they express an exaggerated concern about the impact of same-sex marriage on civil liberties while disregarding the importance of protecting the equality rights of gays and lesbians," and said that his appointment "is a further example of the tendency of the Harper government to appoint judges whose political views align with its own, rather than on the basis of merit and diversity concerns."

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